Bill proposes no bail up front

LIHUE — State legislators will consider a bill that would allow people facing criminal charges to be released from custody without having to post bail up front.

“It places the consequences at the end of the process instead of at the beginning,” said Kamaile Maldonado, a policy advocate for the Office of Hawaiian Affairs, who wrote the bill after serving on a task force convened by the state Judiciary to examine pretrial detention for criminal defendants.

Unlike traditional cash bail, “unsecured bail” allows defendants to get out of jail while awaiting judicial proceedings by promising to pay the bail amount if they fail to appear at trial.

Cash bail is the most common option used by Hawaii judges, allowing the temporary release of an accused person awaiting trial. Defendants post a determined amount of money that will be returned to them only if they show up to court on the appointed date, as an assurance that they don’t flee the jurisdiction of the court.

The system may be effective at making sure defendants make it to their court dates, but bail reform advocates — the legislative task force included — say the system disproportionately hurts poor people.

Maldonado explained the problem in a statement written to accompany the bill, saying the system is overreliant on cash bail, “which releases defendants based on their ability to pay, moreso than on whether a defendant is an actual flight risk or poses a risk to public safety.”

“Unlike the wealthy, poor defendants may be forced to choose between securing their freedom and having enough money to pay their rent,” Maldonado wrote. “Poor defendants who have little choice but to remain in jail for the weeks or months prior to trial risk losing their jobs, or even custody of their children. For these individuals, cash bail effectively becomes a punishment without a trial.”

Unsecured bail is just as effective at ensuring public safety and court appearances, according to a 2013 study, “Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option, sponsored by the Pretrial Justice Institute.”

In October, The New York Times reported that hundreds of volunteers acting on behalf of the advocacy group, Robert F. Kennedy Human Rights, posted $1.2 million in bail to free 105 people from Rikers Island prison and other city jails. Of the 90 who had scheduled court appearances, only two failed to show up as of Friday.

Whether the OHA proposals — House Bill 175 and Senate Bill 192 were introduced and passed first reading earlier this month — will be effective in changing Hawaii’s bail laws remains an open question, but Maldonado is optimistic.

“I think the timing is right,” she said. “There is a lot of community attention right now.”

The OHA bill joins another bill focused on bail reform in the state Senate and House this session. House Bill 1289 and Senate Bill 1421 were written to implement recommendations of the criminal pretrial task force.

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Caleb Loehrer, staff writer, can be reached at 245-0441 or cloehrer@thegardenisland.com.

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